On 2 and 3 June 2022, PICUM brought together migrant and human rights advocates, from both inside and outside our membership, at our General Assembly, to reflect on current challenges and ways forward in advancing the rights of undocumented people. This short blog is a summary of key discussions.

A lot has happened in the last few years, with important consequences for individuals and for our movement.

The COVID-19 pandemic, to start with, has exposed and exacerbated inequalities that run deep in our societies, especially around who is able to access health care, work in safe and decent jobs, and be protected from financial shocks. On the flipside, the pandemic has also shown some promising openings, with national and local efforts across Europe to give access to the vaccines to undocumented people too. The challenge now is to turn such promising measures into a steppingstone to open up access to health care and public services permanently and to everyone, regardless of their residence status.

At the same time, EU migration policies continue to go in the direction of more exclusion. The EU Migration Pact, a set of legislative proposals and policy recommendations put forward by the European Commission in September 2020, and currently under negotiation, will result in an increase in detention and lack of due process for people, including children, trying to reach or already living in Europe. In 2021, new plans to step up returns and border control, sometimes in the name of “fighting” against smuggling, have only increased the risk of harm to undocumented people.

Adopted at the same time as the Pact, the 2021 EU Action Plan Against Anti-Racism is a welcome development. Prompted by the public outcry over the killing of George Floyd in the US, the Action Plan recognises that racism – not just in individuals, but in our systems and structures – is alive and well in Europe and commits to taking steps to address it. But its failure to call out the systemic racism that is so pervasive to EU migration policies is a glaring omission that is itself a call to action.More recently, the war in Ukraine has forced millions to flee, to neighbouring countries and beyond. Civil society organisations across Europe, including many PICUM members, are at the forefront of the response to the resulting humanitarian crisis. Many organisations in Eastern Europe were already overwhelmed with assisting people left stranded at the border with Belarus, as Minsk and Brussels wrangled politically over their lives in the summer of 2021 – and where Europe’s response continues to focus on politics and security, ignoring the human tragedy the continues to unfold.Quite contrary to its standard approach to migration, the EU has been quick to welcome and grant protection to people impacted by the war. Shortly after the invasion, it managed to activate for the first time the 2001 Temporary Protection Directive that grants automatic and immediate status to people who left Ukraine after the Russian invasion. But many non-Ukrainians, especially black and brown people equally trying to escape the war, were met with detention instead. While those who welcome Ukrainian families in their homes are – rightly – celebrated, those who help people coming from African or Asian countries in some cases face long proceedings in court, fines, and imprisonment for “facilitating irregular entry”.

Such differential treatment shows discrepancies between those moving across borders and how they are treated even in the context of war, which often depends on factors like race, class, and gender.This year, at our General Assembly, our focus was on building intersectional movements for change. In addition to discussing double standards in the treatment of migrants based on systemic discrimination, we heard from people working on criminal justice, on racial justice, on sex work and sex workers’ rights, digital rights, and the fight against poverty about opportunity to strengthen our work together. Our efforts to achieve social justice for undocumented people and those with insecure residence status is not separate from efforts to dismantle racism, sexism, classism. All of these efforts must be viewed within a common struggle for a more just society.It can be hard to disentangle the various systems of oppression that affect so many of the people who try to come to Europe and the daily lives of those who have the potential for experiencing discrimination because they may be of color, a woman, trans, poor, a sex worker, Muslim – all of these identities and experiences are variously oppressed and – directly or indirectly – criminalised. Working in silos cannot achieve lasting change, but joining forces across movements can.

While every movement has its own specificities, the realisation of an equal society requires us to work together against oppression and towards a common vision of a more just society.

Ahead of an EU Justice and Home Affairs Ministers meeting on 9-10 June to discuss the reform of the Schengen Borders Code, a coalition of almost 40 NGOs, in a joint statement, denounces the risk of more racial profiling and other fundamental rights violations under the proposed new rules.

The Schengen Borders Code regulates border controls at the internal and external borders of the Schengen area, and essentially prohibits internal checks as a rule, with some limited exceptions. The reform – proposed by the Commission in December 2021 and currently being discussed by the EU Council and the Parliament – maintains this general prohibition on internal checks on paper, but at the same time allows police to carry out checks at internal border areas to “prevent irregular migration” (Recitals 18 and 21 and Article 23).

Since systematic checks are prohibited, it is clear that “random” document checks will depend on police’s decisions about who “looks like” a person without valid papers. Research (see Notes) has already shown that police tend to stop people for checks based on racial, ethnic, or religious characteristics: the new Schengen Borders Code will exacerbate this trend of racial profiling.

The new Code also introduces the possibility for joint police patrols to apprehend people caught without a valid document at internal borders, detain them for up to 24 hours and transfer them to the EU state they think the person came from, without any individual assessment. This “internal pushback” and the ensuing detention would also apply to children, even though this has been deemed illegal by courts and despite international consensus that child detention constitutes a human rights violation.

The proposal escalates the use of monitoring and surveillance technologies like biometric identification technologies and AI-based automated decision-making systems that do not apply relevant safeguards and would be at odds with existing EU data protection legislation and the currently debated Artificial Intelligence Act.

Lastly, the new Code introduces measures that would limit the possibility for people to seek asylum in the EU in situations of “instrumentalisation of migration”. In particular, the reform steps up Frontex’s involvement and allows member states to limit the number of border crossing points and their opening hours, and to intensify border surveillance including through drones, motion sensors and border patrols.

According to Marta Gionco, Advocacy Officer at the Platform for International Cooperation on Undocumented Migrants (PICUM), “As it stands now, the new Schengen Borders Code would turn the Schengen area into a tech-controlled space where racial profiling gets de facto legitimised, access to asylum is curtailed and freedom of movement is undermined”.

Stephanie Pope, EU Migration Policy Advisor, Oxfam International: “For years, European leaders have shut their eyes to pushbacks. Now the EU is going one step further with an attempt to legalise and legitimise them and other human rights violations happening at Europe’s borders. Where is the condemnation? Where is the commitment to human rights? Pushbacks cannot be accepted as the norm and cannot be legalised.”

Hope Barker, Senior Policy Analyst from the Border Violence Monitoring Network: “In conjunction with other legislative documents of the New Pact, such as provisions for pre-screening procedures that rely heavily on the arbitrary detention of POM and the failed attempts at implementing an IBMM in Croatia and Greece, the SBC reform contributes to the emergent paradigm in European migration policy that frames movement as a security concern in order to justify disregard for fundamental human rights provisions”.

NOTES TO THE EDITORS:

• EU Justice and Home Affairs Ministers are meeting on 9-10 June to discuss various issues related to their portfolios, including the new Schengen Borders Code. The provisional agenda can be read here.
• The full civil society joint statement, including key recommendations, can be read here.
• 2021 research from the EU Fundamental Rights Agency shows that people from an ethnic minority are disproportionately affected by police stops, both when they are walking and when in a vehicle. 2014 research also from the EU Fundamental Rights Agency showed that 79% of surveyed border guards at airports rate ethnicity as a helpful indicator to identify people attempting to enter the country in an irregular manner before speaking to them.
• PICUM is a Brussels-based network of over 160 NGOs working to advance the rights of undocumented people.
• For interviews and other media requests, please contact PICUM’s Communications Officer Gianluca Cesaro at gianluca.cesaro@picum.org

Cover: Alexander Lupin – Adobe Stock

Having no, or precarious, residence status often increases a person’s risk of experiencing abuse or exploitation. At the same time, it means having fewer options to get support and protection.

Through our members and partners, we got in touch and spoke with people who have experienced mistreatment while being undocumented. They told us what they went through, how they reacted, and what safety means to them.

We spoke to people from Brazil, Ivory Coast, Mexico, Senegal. Some spoke under conditions of anonymity, for fear of repercussions on their lives, while others chose to show their face while sharing their stories. For many, living without a residence permit is an important, but by no means the only, piece of the puzzle in their experience of discrimination and safety, as well as belonging: being black, being poor, being a woman, being a trans woman, being perceived as a foreigner but also being far away from family are all factors that affect how they are treated.

Everyone’s experience is different. But all agree that protection and safety are not a reality for all yet.

Living without a residence permit means being at constant risk of being detained and deported to another country. Exploitative employers and abusive partners know this all too well, and can take advantage of this insecurity to continue mistreating them. They know that people with no, or precarious, residence permits are very unlikely to seek help, especially from the authorities.

“He used to tell me that I was nothing, that even if I’d report him they wouldn’t believe me” – Aya

Going to the police is often not an option at all.

“You don’t go and report robbery or something worse, because you are afraid that in the end, it goes against you” – Sabrina

The people we spoke to know that law enforcement authorities are likely to report them to immigration enforcement if they come forward, because of how irregular stay is criminalised or regarded with suspicion.

“You are afraid to go to the police because it’s like going to get arrested” – Solo

Far from getting support and protection, people with no or precarious residence permits are likely to be punished twice, first through the violence and abuse they endure from others, and then through detention and deportation from immigration enforcement.

Institutional racism, in particular in the criminal justice system, is another factor that keeps many black and brown undocumented people away from law enforcement.

“The lawyer told me very clearly: the judge will not believe what you are going to say’” – Daouda

Social support services may also be unavailable to people without residence permits. For instance, public-funded shelters for women experiencing domestic violence are sometimes unable to open their doors to undocumented women, because expenses they’d incur wouldn’t be covered.

“Without papers, they treat you differently. I’ve seen it with the social services, and with the police as well” – Adriana

Barriers to safety are many, but there are solutions.

The people we talked to spoke about regularisation, specialised  and inclusive support for those who are victims of domestic violence, and the possibility of filing complaints without facing deportation. Most of all, they spoke of equality.

“It’s the only thing we ask for, to have rights like everybody else” – Aya

At PICUM, we recognise that many things are needed to ensure everyone is safe and protected. When it comes to risks linked to immigration enforcement, “safe reporting” refers to a holistic set of measures that prioritise the safety and rights of all victims above the enforcement of immigration rules.

Everyone deserves to be safe. Let’s make access to support and protection a reality for all, with or without papers.

In recent years, EU migration policies have consistently focused on increasing the rate of returns. Yet such an approach rests on the mistaken belief that for undocumented people, the only option is to return – either by force or “voluntarily”.

In reality, people continue to reside irregularly for a wide range of reasons, and may indeed have other grounds for residence than an asylum application. According to official estimates, every year 300,000 people cannot return from the EU for different reasons, including human rights and factual considerations.

This report analyses the main human rights reasons for which people who do not qualify for asylum cannot be deported, as well as the external circumstances that can make deportation or return impossible. It concludes by advocating for the need to abandon the exclusive focus on return procedures in favour of a more holistic, comprehensive approach which takes into consideration a broader range of solutions. To do so, it analyses different policies adopted by EU member states to provide rights and protection for people with barriers to return, through the comparison of ten national level case studies from eight different countries (Cyprus, France, Germany, Greece, Italy, the Netherlands, Spain, Poland).

Human rights and other barriers to return

Under international and EU law, there are several human rights reasons for which people who do not qualify for international protection cannot be deported, such as the principle of non-refoulement, protection of family and private life, the best interests of the child, the prohibition of arbitrary detention and protection on the grounds of statelessness. In most countries, these considerations fall outside of the scope of the asylum procedure.

In addition, there can be practical reasons, outside of individual control, for which return and deportation might be practically impossible. For instance, people might not be able to obtain a valid passport, or they might be unable to travel due to medical reasons.

Residence permits for people with barriers to return

Policies which focus on deportation and return as the only possible outcome for people in an irregular administrative situation are bound to create situations of socio-economic exclusion, discrimination and human rights violations, whether in the country of origin, when people are forcibly returned, or in the country of residence, when people are excluded from accessing pathways to regularise their situation and are forced into living in irregularity, often for years.

For this reason, it is key to work towards a paradigm shift in the EU migration policies, from considering return, or deportation, as the primary – or often only – option for people in an irregular administrative situation, to considering different options for case resolution, including pathways to obtain a permanent or temporary residence status.

Permits and statuses available to people with barriers to return vary greatly from country to country, and can range from full-fledged residence permits (e.g., Italy, Spain, Poland) to temporary suspensions of deportation orders (e.g. Greece, Germany). However, the dividing line between the two sub-groups is often very thin, and the categories are far from being homogeneous or well-defined. Permits and statuses can be better described as being placed along a continuum which ranges from residence permits granting full access to labour and social rights, stability and protection from deportation; to mere suspensions of deportation with no rights nor security attached.

This report identifies four key elements which need to be fulfilled in order to ensure that people with barriers to return are granted rights and protection:

• Initiation of the procedure: permits and statuses accessible to people with barriers to return should be evaluated automatically by the authorities (ex officio) on an individual basis, before the issuance of a return decision or a refusal of entry. This is the case, at least for certain permits, in Italy, Spain, Poland, the Netherlands and Germany. In addition, individuals should be able to apply independently as well, as the authorities might not be aware of their specific barriers to return. In the countries examined in this report, individuals can apply independently to certain permits or statuses in Italy, Spain, Cyprus, the Netherlands and France.
• Right to work and access to social services: access to the labour market and to social services should be automatic for any of these permit holders or statuses. Currently, the right to work is granted automatically only in five out of the ten case studies (Italy, Spain, Poland, France, the Netherlands), and full access to social services in four (Italy, Spain, France, the Netherlands).
• Pathways to more secure status: as barriers to return are often continuous, it does not make sense to limit access to secure, long-term permits. Secure permits allow people to acquire more certainty over their future, plan their lives and gain full access to social and labour rights. All countries except two (Greece and Cyprus) analysed in this report grant the possibility to apply to more secure, long-term permits.
• Protection from deportation for the whole duration of the permit / status. This is the case for all of the case studies considered, with the exception of the “no-fault” permit in the Netherlands and the “Duldung” in Germany.

Preventing limbo situations

Despite different national-level policies which provide rights and protection for people with barriers to return, in practice many people still fall through the cracks. This can happen, for instance, because the criteria to apply are too stringent or completely arbitrary; and because of administrative or legal barriers to access these permits. In addition, several states still fail to grant any kind of permit to people who cannot be deported or return, and many others even fail to provide an official acknowledgement that the person cannot be deported, which is in breach of the EU Return Directive.

When this happens, undocumented people with barriers to return find themselves in a limbo, often for years, unable to access healthcare, housing, education, and justice, and are often pushed into undeclared work and exploitation.

To prevent this, it is essential for the European Union and member states to set an obligation to comprehensively assess fundamental rights considerations (including the right to health, private and family ties, best interests of the child, non-refoulement and the protection of stateless people) and whether third country nationals have the possibility to access an autonomous residence permit or other authorisation granting a right to stay before a return decision is issued.